HERNIA VENTRAL POSTOPERATIVE

DONNIE R. HACHEY · 2026 · Case ID: A26025546

MIXED

Summary

The veteran, who served from July 1966 to June 1968, appeals the denial of an increased rating for his incisional ventral hernia and earlier effective dates for TDIU and Dependents' Educational Assistance (DEA). The Board granted an increased rating of 40 percent for the hernia from June 3, 2013, to February 13, 2020, finding the hernia was large but not massive, and thus not warranting a higher rating under prior criteria. The Board denied a rating higher than 40 percent from February 14, 2020, as the hernia did not meet the new criteria for a rating greater than 40 percent. Regarding TDIU, the Board found the veteran unable to secure substantially gainful employment due to his combined service-connected disabilities, including residuals of kidney neoplasm, hypertension, incisional ventral hernia, unspecified trauma and stressor-related disorder, tinnitus, and bilateral hearing loss. A vocational expert opined that these conditions precluded substantially gainful employment since June 2013. The Board granted an effective date of November 1, 2013, for TDIU, finding the veteran totally disabled from that date. Basic eligibility for DEA was granted effective June 3, 2013, due to the veteran being permanently and totally disabled from that date.

Rationale

Hernia rated under DC 7339; Prior criteria more favorable as hernia was large but not massive; 40 percent rating warranted for large hernia not well supported by belt

Special Benefit

TDIU

Diagnostic Code

7339

Docket No.

260211-630434

Full Decision Text

Citation Nr: A26025546
Decision Date: 03/23/26 Archive Date: 03/23/26

DOCKET NO. 260211-630434
DATE: March 23, 2026

ORDER

Entitlement to an increased rating of 40 percent, but no higher, for incisional ventral hernia from June 3, 2013, to February 13, 2020, is granted.

Entitlement to an increased rating greater than 40 percent for incisional ventral hernia from February 14, 2020, is denied.

Entitlement to an effective date of November 1, 2013, but no earlier, for a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of June 3, 2013, but no earlier, for basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted.

FINDINGS OF FACT

1. The Veteran's incisional ventral hernia is large and not well supported by a belt under ordinary conditions. It is not massive.

2. From June 3, 2013, to October 31, 2013, a single service-connected disability other than the Veteran's kidney disability and associated incisional ventral hernia did not render the Veteran unable to obtain or retain substantially gainful employment.

3. From November 1, 2013, the Veteran cannot obtain or retain substantially gainful employment due to his service-connected disabilities combined.

4. The Veteran is permanently and totally disabled from June 3, 2013.

CONCLUSIONS OF LAW

1. The criteria for an increased rating of 40 percent, but no higher, for incisional ventral hernia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7339 (2023).

2. The criteria for an increased rating greater than 40 percent for incisional ventral hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7339 (2023).

3. The criteria for an effective date of November 1, 2013, but no earlier, for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 3.400, 4.3, 4.16.

4. The criteria for an effective date of June 3, 2013, but no earlier, for basic eligibility to DEA under 38 U.S.C. Chapter 35 have been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1966 to June 1968. He appeals a February 2025 rating decision by the Agency of Original Jurisdiction (AOJ) denying an increased rating for an incisional ventral hernia and earlier effective dates for the awards of TDIU and DEA.

In the February 2026 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2025 rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

In the February 2026 VA Form 10182, the Veteran waived his right to select a different Board review option." See February 2026 VA Form 10182. Accordingly, Board review is appropriate. See Williams v. McDonough, 37 Vet. App. 305 (2024).

Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of
20.300, 20.301, 20.801.

Increased Rating

Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102.

The Veteran's incisional ventral hernia is rated under 38 C.F.R. § 4.114, Diagnostic Code 7339.

VA amended the criteria for rating hernia disabilities effective from May 19, 2024.

These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after May 19, 2024. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Prior to May 19, 2024, a 20 percent rating is warranted for a small hernia, not well supported by a belt under ordinary conditions, or for a healed ventral hernia or post-operative wounds with weakening of the abdominal wall and indications for a supporting belt. See 38 C.F.R. § 4.114, Diagnostic Code 7339 (2023).

A 40 percent rating is warranted for a large hernia that is not well supported by a belt under ordinary conditions. Id.

A 100 percent rating is warranted for a massive hernia, with persistent, severe diastasis of recti muscles, or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. Id.

From May 19, 2024, a rating greater than 40 percent requires a hernia greater than or equal to 15cm in one direction. See 38 C.F.R. § 4.114, Diagnostic Code 7338 (2024). Here, the Veteran's hernia is less than 15cm in one direction. See August 2022 VA examination report. Accordingly, the Board finds the criteria in effect prior to May 19, 2024, are more favorable to the Veteran.

The term "massive" is not defined
recti muscles, or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. Id.

The term "massive" is not defined in the rating criteria. Merriam-Webster defines massive to mean "being extensive and severe." See, e.g., "massive," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/massive (last accessed March 18, 2026).

Further, "extensive" is not defined in the rating criteria. Merriam-Webster defines extensive to mean having a wide or considerable extent. See, e.g., "extensive," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/extensive (last accessed March 18, 2026).

Lastly, the term "severe" is not defined in the rating criteria. Merriam-Webster defines severe to mean "of a great degree." See, e.g., "severe," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/severe (last accessed March 18, 2026).

In a September 2019 rating decision, the AOJ favorably found that the Veteran has had a ventral hernia since June 3, 2013. See 38 C.F.R. § 3.104(c). Further, it is undisputed that the Veteran's hernia has not been well supported by a belt under ordinary conditions throughout the appeal period. See, e.g., March 2020 VA examination report; January 2020 Dr. M.P. letter.

While an August 2019 VA examiner found the Veteran's hernia was "small," he did not list the hernia's dimensions. See August 2019 VA examination report. In contrast, a VA examiner seven months later found the Veteran's hernia was "large" and explained that the hernia was 8.0cm x 6.0cm. See March 2020 VA examination report. Further, after reviewing records, a January 2025 VA reviewing clinician found the Veteran's hernia has been 3cm or greater but less than 15cm in one dimension throughout the appeal period. See January 2025 VA medical opinion. Resolving doubt in favor of the Veteran, the Board finds the Veteran's hernia more closely approximates "large" than "small" throughout the appeal period; as a result, a 40 percent disability rating is warranted under Diagnostic Code 7339.

Nevertheless, neither the medical experts of record nor the Veteran described an extensive and severe ventral hernia; in other words, while the hernia was large, it was not massive. See, e.g., August 2022 VA examination report. Further, the Veteran did not have persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall to be inoperable for that reason. Id.

In conclusion, the Board finds that an increased rating of 40 percent, but no higher, for incisional ventral hernia from June 3, 2013, to February 13, 2020, is warranted. However, an increased rating greater than 40 percent from February 14, 2020, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

TDIU

Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). Entitlement to TDIU is treated as a rating for effective date purposes. It is undisputed that the date of claim for effective date purposes in
(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

TDIU

Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). Entitlement to TDIU is treated as a rating for effective date purposes. It is undisputed that the date of claim for effective date purposes in this case is June 3, 2013, which is the date the Veteran first became service connected for his hernia.

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements.

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

"Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a).

In determining whether a veteran can secure and follow a substantially gainful occupation, the Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019).

The Veteran last worked in October 2010 and has a high school education. See June 2023 P.T. vocational opinion.

In a February 2023 rating decision, the AOJ granted an effective date of February 14, 2020, but no earlier, for the award of TDIU. The Veteran argues that the effective date should go back to June 3, 2013, which is the date of claim. See February 2026 brief. For the reasons explained below, the Board finds an effective date of November 1, 2013, but no earlier, for the award of TDIU is warranted.

The Board first notes that the Veteran is rated at a schedular 100 percent combined from June 3, 2013, to October 31, 2013. Specifically, the Veteran is rated at 100 percent for "residuals of neoplasm of the kidney, status post right nephrectomy and hypertension" during that time, as well as at 40 percent for incisional ventral hernia associated with "residuals of neoplasm of the kidney, status post right nephrectomy and hypertension." Further, the Veteran had a 30 percent rating for unspecified trauma and stressor-related disorder, a 10 percent rating for tinnitus, and non-compensable ratings for bilateral hearing loss and a surgical scar.

The Court has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU
10 percent rating for tinnitus, and non-compensable ratings for bilateral hearing loss and a surgical scar.

The Court has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).

However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his or her disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a Veteran has a 100 percent disability rating for a "single disability," and TDIU for a sole disability may satisfy this requirement. See Bradley, 22 Vet. App. at 292.

Further, SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

Here, the Veteran's vocational expert found that a combination of his service-connected unspecified trauma and stressor-related disorder, tinnitus, and bilateral hearing loss have at least as likely as not precluded him from securing and following any substantially gainful employment since June 2013 and continuing to the present. See June 2023 P.T. vocational opinion. Further, "residuals of neoplasm of the kidney, status post right nephrectomy and hypertension" and incisional ventral hernia associated with "residuals of neoplasm of the kidney, status post right nephrectomy and hypertension" are not separate and distinct from each other; as a result, TDIU is not warranted for a single disability other than "residuals of neoplasm of the kidney, status post right nephrectomy and hypertension" or incisional ventral hernia associated with "residuals of neoplasm of the kidney, status post right nephrectomy and hypertension." Accordingly, an effective date earlier than November 1, 2013, is not warranted for TDIU.

Nevertheless, as stated above, a vocational expert found that the Veteran's service-connected disabilities have at least as likely as not precluded him from securing and following any substantially gainful employment since June 2013 and continuing to the present. See June 2023 P.T. vocational opinion.

Specifically, the vocational expert found that the Veteran's psychological symptoms would interfere with his ability to remain focused on work tasks to the extent required by employers, thereby precluding him from meeting employer expectations of adequate pace and productivity on a consistent and reliable basis. Further, the combination of the Veteran's symptoms of anxiety, depressed mood, impaired sleep, hypervigilance, difficulty concentrating, loss of focus, forgetfulness, and difficulty keeping his train of thought would at least as likely as cause him to be unable to remain on task and productive to the extent required by employers. Id.

Furthermore, the Veteran's tinnitus and bilateral hearing loss have at least as likely as not further contributed to his inability to secure and follow substantially gainful employment since at least June 2013 and continuing to the present. Id. His service-connected bilateral hearing loss results in difficulty understanding and communicating with others. His service-connected tinnitus interferes with his ability to sleep, is annoying, and further precludes his ability to understand and communicate with others. According to P.T., these limitations at least as likely as not preclude his ability to meet employer expectations of effective interpersonal communication and further contribute to his inability to meet employer expectations of adequate pace and productivity. Id.

The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician.
at least as likely as not further contributed to his inability to secure and follow substantially gainful employment since at least June 2013 and continuing to the present. Id. His service-connected bilateral hearing loss results in difficulty understanding and communicating with others. His service-connected tinnitus interferes with his ability to sleep, is annoying, and further precludes his ability to understand and communicate with others. According to P.T., these limitations at least as likely as not preclude his ability to meet employer expectations of effective interpersonal communication and further contribute to his inability to meet employer expectations of adequate pace and productivity. Id.

The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board finds that the Veteran's psychological limitations would interfere with his ability to remain focused on work tasks to the extent required by employers, thereby precluding him from meeting employer expectations of adequate pace and productivity on a consistent and reliable basis. Further, his hearing loss and tinnitus symptoms would preclude his ability to meet employer expectations of effective interpersonal communication and further contribute to his inability to meet employer expectations of adequate pace and productivity. Therefore, the Veteran's service-connected disabilities prevent him from obtaining and maintaining gainful employment from November 1, 2013. Accordingly, an effective date of November 1, 2013, but no earlier, for the award of entitlement to TDIU have been met. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021); 38 C.F.R. § 3.102.

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DEA

Because the Veteran is entitled to either a 100 percent disability rating or TDIU and his service-connected disabilities render him permanently and total disabled from June 3, 2013, basic eligibility to DEA is warranted from that date. 38 U.S.C. Ch. 35; 38 C.F.R. § 3.807.

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Salazar, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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